CCA

Here’s the scenario – man is caught entering a home through a window that he broke. A female occupant of the home comes face-to-face with him and he then runs away. Is there evidence that the man was attempting to unlawfully enter the woman’s home? Certainly. Is there evidence to support the notion that he intended to commit a theft (or other felony) therein? That’s the question.

In Gear v. State, when posed with this question, the 12th District Court of Appeals (Tyler) held that the evidence was insufficient to prove that the man intended to commit a theft or other felony on the premises. Yes, the man tried to break in and yes the man was poor, but the State simply did not prove that an attempted “burglary” had occurred.

Enter the CCA (and exit the burden of proof). The Texas Court of Criminal Appeals reversed the Court of Appeals, holding:

On this record, we decide that a factfinder could reasonably find beyond a reasonable doubt that the recently unemployed appellant with about one dollar in his pocket intended to commit theft inside the complainant’s home when he attempted to enter the home through the window that he had just broken and where the evidence also shows that appellant ran when interrupted by the complainant and that appellant gave conflicting and implausible explanations for his actions.

If you ask me, who cares what explanations appellant gave for his actions? The State must prove this specific intent crime. The burden doesn’t shift to appellant to prove his innocence. If the State doesn’t prove the specific intent to commit theft, a verdict of acquittal is required.

Judge Cochran dissented from the majority. She writes,

[The majority opinion] seems to me to be a “Don’cha know” standard; appellant broke the window and was about to climb inside, therefore “don’cha know” he intended to commit theft…Looking at all of the evidence in this case, even in the light most favorable to the trial judge’s verdict, I cannot find the evidence sufficient in quality, character, or weight…

While everyone can probably agree that the man intentions were not honorable, if the State is going to charge something, the State must prove up the charge.

Here's an excerpt from the Texas Court of Criminal Appeals' majority (5-3) opinion in Phillips v. State, which dealt with the Ex Post Facto application of a statute of limitations law for sexual offenses:

"Appellant was convicted of twelve counts of sexual offenses against his daughter that occurred in 1982 and 1983. But prosecution under the 2007 indictment charging appellant was absolutely barred by the statute of limitations in 1993. These charges could not be resurrected by a 1997 statute extending the statute of limitations for sexual offenses. No one–not the trial judge, the prosecutor, the defense, or the court of appeals–recognized this constitutional ex post facto violation. Because this is an important constitutional issue that will undoubtedly recur given the even more recent statutory elimination of the statute of limitations for some sexual offenses, we granted appellant’s petition for discretionary review. Although the State Prosecuting Attorney (SPA) agrees that the statute of limitations had run before appellant’s indictment, she argues that appellant failed to preserve this issue for appeal because he did not object in the trial court. We reaffirm our prior opinions that have stated that an absolute statute-of-limitations bar is not forfeited by the failure to raise it in the trial court. We reverse the court of appeals, which held that appellant’s prosecution was not barred."

Presiding Judge Keller dissented, joined by Judges Keasler and Hervey.  They would hold that the trial judge's ex post facto application of the law may violate due process, but that the majority got it wrong because the prohibition on ex post facto laws only applies to the legislature.

Yesterday, the Texas Court of Criminal Appeals released a published opinion (In Re Bowen) in an original mandamus proceeding. The relators (i.e. petitioners), two capital murder defendants, requested that the CCA direct the trial judge to rescind his order disqualifying the relators’ mutually retained counsel of choice. The State had moved that the counsel be disqualified due to a perceived conflict of interest and the fact that he would be called to cross-examine another one of his clients (a witness that the State intended to call).

The two defendants and the other client had all signed waivers regarding the actual or apparent conflict, but that did not satisfy the trial judge. In granting the State’s motion to disqualify the counsel, the trial judge stated:

It’s really about the integrity of the judicial process and the public’s perception of the judicial process and what it would look like to go to a trial on a capital murder case where the same attorney representing both defendants is also representing one of the prosecution’s witnesses.

He went on:

I know how these things play out. I’m telling you I can see some reporter that doesn’t understand diddly about what’s going on in the trial but, you know, can pick up an issue like this and make a story out of it.

Surely he doesn’t mean me. I’m confident that I at least know diddly about the system, if not more.

In the mandamus proceeding, the CCA was called upon to overturn the trial court’s order. Citing the U.S. Supreme Court case, Wheat v. United States, 486 U.S. 153 (1988), the CCA explained that trial courts “must recognize a presumption in favor of a defendant’s counsel of choice.” The CCA also noted that “when a trial court unreasonably or arbitrarily interferes with the defendant’s right to choose counsel, its actions rise to the level of a constitutional (6th Amendment) violation.”

The CCA emphasized that conflict of interest cases really turn on the facts found by the trial court. In this case, the trial defense counsel offered a sealed affidavit explaining why his mutual representation would not amount to a conflict. He did not share his reasoning in open court for fear that the State would then know what he had up his sleeve. Once the CCA examined the defense counsel’s affidavit, it was convinced that there was no conflict (especially since all parties waived any potential conflict). Accordingly, the CCA held that the trial judge had violated the defendants' 6th Amendment right to counsel and directed that the judge rescind his order.

Much like the existential question about the tree falling in the forest, if something occurs during a session of court and there’s no court reporter around to hear it (or transcribe it), did it really occur? More importantly, if the losing party wishes to appeal a ruling that took place during the time when the court reporter was not around, can that party prevail? The simple answer, according to the Texas Court of Criminal Appeals, is NO.

In Davis v. State, the appellant challenged a certain ruling (the granting of a continuance over defense objection), but there was no record of the session of court in which the ruling was made. Accordingly, the appellate court could not determine whether the trial court erred in granting the State’s motion. The appellant asserted that the trial court had a duty to make a record of the hearing and that any deficiency in the record must work against the State as the party that made the motion. Not so, held the CCA, overruling the 5th District Court of Appeals (Dallas).

The CCA explained:

Our case law…imposes an additional, independent burden on the appealing party to make a record demonstrating that [a certain] error occurred in the trial court. This includes a burden to object when the official court reporter is not present, as he is required to be under Rule 13.1, in order to preserve and error that may occur for appeal.

Even though the State had that burden at trial, the appellant, as the appealing party, had an obligation to present a record in the court of appeals that demonstrates he in entitled to appellate relief.

And with that, the CCA overturned the 5th District Court of Appeals, and affirmed appellant's conviction.

Moral of the story for criminal defense lawyers: Always request (under section 52.046 of the Government Code) that a court reporter be present for open sessions of court. You never know what you might want to appeal later. And if for some reason the court reporter isn’t present and you get an adverse ruling, make a later record of it. Give the appellate court something to go on, or else you will certainly lose.  As the CCA put it, "it is the appellant who must bear the consequences of such a definicency in the record."

Note: The CCA mentioned in footnote 19 that it has yet to weigh in on the question discussed in Polasek v. State, 16 S.W.3d 82 (Tex. App.—Houston [1st Dist.] 2000, pet. Ref’d) regarding whether Tex. R. App. P. 13.1 requires a court reporter at all sessions or whether section 52.046(a)(1) trumps. Section 52.046(a)(1) requires the court reporter only when one of the parties makes a request.

Judge Johnson concurred, but it is not clear (to me) why.

A releasee (parolee) is entitled to a prompt preliminary hearing once the revocation process has been initiated by the execution of a revocation warrant. Morrissey v. Brewer, 408 U.S. 471 (1972). Due process, according to the Supreme Court of the United States in Morrissey v. Brewer, requires that a preliminary hearing be held “as promptly as convenient” after a parolee has been arrested to “determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.”

In Ex Parte Bohannan, the applicant (parolee) filed an application for writ of mandamus arguing that the Texas Department of Criminal Justice (TDCJ) violated his constitutional rights by failing to hold a preliminary hearing when the State sought to revoke his parole.

While on parole for aggravated rape, applicant was arrested for monitoring violations. However, TDCJ did not hold the required preliminary hearing because it has a standing policy that it does not conduct preliminary hearings while there is a criminal case pending. Once applicant filed for habeas corpus, however, the TDCJ conducted the preliminary hearing. Even though he ultimately received the hearing that he sought, applicant nonetheless requested that the CCA intervene, arguing that his situation is not unique in Texas and that this problem is “capable of repetition, yet evading review” (an exception to the mootness doctrine).

TDCJ, in its brief to the CCA, stated its belief that it need not conduct such a hearing while a criminal case is pending because the court system conducts similar probable cause hearings and a preliminary hearing would only be redundant. In essence, TDCJ was saying they there is no need for them to follow the law.

Ultimately, the CCA held that the case was non-justiciable (moot), so it did not consider the substance of applicant’s claim. However, Judge Keasler, joined by Judges Price, Hervey and Cochran, penned a scathing concurrance wherein it warns the TDCJ that if it continues its policy of not granting preliminary hearings in parole revocation cases, “it does so at its own peril.”

The Supreme Court has not made any exceptions to [the preliminary hearing requirement]. Thus, contrary to the assertion of the Texas Department of Criminal Justice (TDCJ), as amicus curiae, such a hearing is not duplicative of any other prior probable cause determination. The failure to comply with Morrissey violates a releasee’s constitutional rights, and our experience with this issue establishes that the Board, pursuant to the policies established by the TDCJ, Parole Division, has violated, and continues to flagrantly violate, clearly established constitutional law. Indeed, TDCJ has admitted as much: “there is no reasonable expectation that the TDCJ will discontinue its policy of not providing a preliminary hearing when a releasee is being held on pending criminal charges . . . .” This is patently unacceptable. And if it “reasonably expects” to continue this policy, it does so at its peril.

The answer for future parolees: MANDAMUS.

Because a claim challenging the Board’s failure to provide a preliminary revocation hearing is non-justiciable, Article 11.07 does not provide an adequate remedy at law for a release to compel the Board to comply with its ministerial duty. But mandamus clearly does. And in response to any future alleged violations on mandamus, as time is of the essence, it may be necessary and appropriate for TDCJ and the Board, through their legal representatives, to appear before us in person to answer any allegation that Morrissey’s mandate is being disobeyed.